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Case Update: Ineptitude and any assertion of breach of contract does not equal to being dishonest and a cheat

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31 January 2022

DEFAMATION LAW
Travel Agency – Holiday Package – Visa Approval Issues – Cancelled – Facebook – WhatsApp – Defamation – Justification – Fair Comment – Unlicensed

Al Maarif Travel & Tours Sdn Bhd v Nur Farhana Binti Yeop Hussin & Anor heard together with Al Maarif Travel & Tours Sdn Bhd v Nadiyah Binti Adnan
Civil Suit No. AA-23CY-1-11/2018 | High Court
- see the grounds of judgment here

Facts The case concerns two actions that were consolidated to be heard one after the other. Both were initiated by Al Maarif Travel & Tours Sdn Bhd (“Plaintiff”). The Defendant in both suits had booked a holiday package with the Plaintiff respectively. Nevertheless, for Nur Farhana, the Defendant in the first suit, the holiday did not materialise. Unhappy with the outcome, she took to Facebook to vent and her publication is the subject of the alleged defamation in this proceeding. Nur Farhana admitted to making the impugned statements but asserted that what was published was an accurate narration of events and pleaded justification and fair comment. Following Nur Farhana’s impugned statements, Nadiyah, the Defendant in the second suit and her tour group proceeded to cancel their trip and sought a refund from booking fees, which the Plaintiff agreed on terms. However, Nadiyah proceeded to publish alleged defamatory statements against the Plaintiff via Facebook. She further included a photograph of the Plaintiff’s directors and Operations manager with the word “Wanted” written across the photo. Both Defendants pleaded the point of illegality and asserted that the Plaintiff was not registered with the Ministry of Tourism, Arts and Culture and thus was an unlicensed travel agency. Therefore, any profits that were gained were illegal and thus the Plaintiff cannot be allowed to claim that its reputation had been defamed.

Issue 1. Whether the impugned statements made by the Defendants in both suits were defamatory?
2. Whether operating a travel agency business without a license is detrimental to the Plaintiff’s claim in Defamation?

Held In allowing the Plaintiff’s claim, Learned Judicial Commissioner, Su Tiang Joo held that the statement made by Nur Farhana claiming that the Plaintiff were cheating or committing fraud could not amount to justification and at best only shows the Plaintiff’s incompetence and a breach of contract as the Plaintiff was carrying out a genuine business of travel agency. In short, for the suit against Nur Farhana, the Judicial Commissioner held that ineptitude and any assertion of breach of contract does not equal to being dishonest and a cheat. In dealing with the suit against Nadiyah, the Judicial Commissioner held that the Defendant failed to prove on a balance of probabilities that the defamatory statements published by her were true or substantially true. In dealing with the fact that the Plaintiff, at the relevant point in time, was an unlicensed travel agency, the court held that a dismissal of the Plaintiff’s claim in full would be disproportionate to the infraction of the need for a license. Instead, the learned Judicial Commissioner was of the view that a 20% reduction of the damages that the Plaintiff would have been entitled to would be a better solution in this case to strike a balance between instilling into members of the public of the need to comply with the law as well as not to take the law into their own hands. In conclusion, both claims by the Plaintiff were allowed but damages were reduced by 20%.

ZUL RAFIQUE & partners
{31 January 2022}

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